Kevin Malik writes in the New York Times in support of Charlie Gard’s parents, presenting a secular, utilitarian argument for the continuation of the child’s treatment.
In the article, Malik draws attention to a contradiction between the State’s position regarding Gard and its position regarding the wishes of a patient with a terminal neurological condition who wishes for assisted suicide.
The practice of withdrawal of care is often invoked in the debate over assisted suicide. Proponents of assisted suicide frequently make an “equal protection” argument: since we allow the death of patients by withdrawing intensive care, shouldn’t we also allow patients to commit assisted suicide?
A few years ago, Neil Garsuch wrote an excellent book examining the legal and moral arguments that bear on the question of assisted suicide. He discussed at length and with meticulous detail the question of withdrawal of care as it might relate to assisted suicide.
Opponents of assisted suicide sometimes argue that withdrawing care is not the same as assisting someone’s suicide because the former is an omission, while the latter is an “action.” Gorsuch explains that that argument is unsatisfactory. In both cases somebody “does” something. It’s not all that clear why the question of acts of omission versus commission should bear on the morality or legality of assisted suicide.
Opponents of assisted suicide may also argue on the point of causality. In the case of withdrawal of care, it is the disease, or nature, that kills the patient. In the case of assisted suicide, death is man-made. The argument from causality is more convincing but not without difficulties.
Garsuch reports that in the case of Vacco versus Quill, a federal appellate court rejected it unanimously with a short litany (italicizes below):
[there is] nothing natural about causing death by means other than the original illness or its complications. The withdrawal of nutrition brings on death by starvation, the withdrawal of hydration brings on death by dehydration, and the withdrawal of ventilation brings about respiratory failure…It certainly cannot be said that the death that immediately ensues is the natural result of the progression of the disease or the condition from which the patient suffers.
The US Supreme Court ultimately disagreed with the appellate court and argued in favor of the distinction between “letting die” and killing, but note the false parallel in the appellate court’s argument:
Withdrawal of the ventilator unmasks an existing ventilators failure. It does not bring it on. Withdrawal of food or water, however, does bring on starvation or dehydration and, from the perspective of causality, would be responsible for the death of a patient, particularly if the patient is otherwise assimilating the food and water without difficulty.
Nevertheless, arguments from causality are likely to remain murky to the modern mind, so long as causality continues to be considered strictly in mechanistic terms.
The most convincing line of argument against the equivalence made between withdrawal of care and assisted suicide, then, is the one involving intent. In withdrawing care, one may foresee but need not intend the patient’s death. In assisted suicide or euthanasia, death is always intended.
As Gorsuch and the Supreme Court explained, the intent behind an action is germane to the how the law deals with certain actions. Criminal law almost always takes intent into account (civil law, on the other hand, is less consistent in that regard).
The distinction between intent and foresight forms the basis of the doctrine of double effect: an action may be permissible even if one may foresee that it will have harmful effects, so long as these effects are unintended, and so long as the potential benefits from the action are proportionate to the potential harms.
In his book, Gorsuch does a nice of job of showing how the doctrine of double effect informs much of American and Western legal practice. He also details arguments raised against this doctrine, but ultimately opines in favor of it–correctly in my view.
In sum, one may not plausibly argue that because withdrawal of care is permissible under the usual circumstances when one does not intend the death of the patient, that assisted suicide should be permissible. In the case of Charlie Gard, however, Malik is correct in drawing the parallel: The state intends Charlie Gard to die, on the argument that his alleged suffering is needless and he should “die with dignity.” It is therefore inconsistent that it should not allow the other patient access to assisted suicide to limit his suffering.
On the question of the withdrawal of intensive care, the correct argument to make is one of dis-proportionality: It is allowable to withdraw care if, in proportion to the prospects for improvement, the burden of care (physical, psychological, or financial) is high. One is not compelled to save life at any costs or under any circumstance, and the assessment of burden is ultimately subjective and can only be made by the patients or their surrogates.
The principle of proportionality in health care has been invoked in one form or another for centuries. Daniel Cronin, the former Catholic archbishop of Hartford, wrote an outstanding book (his PhD thesis) on the question of “Ordinary and Extraordinary Means of Conserving Life” that traces the history of the argument back to the thirteenth century.
The principle is articulated in the ethical directives for healthcare of the US bishops as follows:
While every person is obliged to use ordinary means to preserve his or her health, no
person should be obliged to submit to a health care procedure that the person has judged, with a
free and informed conscience, not to provide a reasonable hope of benefit without imposing
excessive risks and burdens on the patient or excessive expense to family or community (emphasis added).
The problem, of course, is that in healthcare systems that are largely financed by collective entities (government or health insurance companies), the financial burden is no longer shouldered by the patient, family, or “community” in a narrow sense, i.e., a personal community. It is shouldered by an anonymous institution that necessarily operates under bureaucratic rules, so the determination of proportionality can no longer be made subjectively.